McBride's Estate, 152 Pa. 192

McBride's Estate

152 Pa. 192 | Pa. | 1893

Opinion by

Mr. Justice McCollum,

It appears from the appellee’s paper book and from the undisputed statement of their counsel on the argument at bar, that the only objection made to their claim before the auditing judge was that the time for the distribution of the trust fund had not arrived. It is not denied in the exceptions which were dismissed by the orphans’ court in banc, or in the specifications of error filed in this court, that the appellees are members of the Roman Catholic Church, but it is contended that inasmuch as this conceded fact does not specifically appear in the adjudication the decree should be reversed. If it be true, as now intimated by the counsel for the appellant in their his*200tory of the case, that some of the appellees do not answer the testator’s description of the persons entitled to share in the distribution, it is a matter which affects not the St. John’s Orphan Asylum, but the other appellees, because by the terms of the will such grandchildren as answer that description at the time of distribution take the whole fund. If one of the five grandchildren to whom the trust fund was awarded was qualified to receive it the claim of the appellant is as effectually defeated as if all were qualified. If on the other hand all of the appellees are now incompetent to share in the distribution, it is difficult to understand why the appellant resists a construction which would give it the fund it is so anxious to appropriate to its own uses. We conclude in view of the concession on the audit, the attitude of the appellant on the question of construction and the absence of even a suggestion that all the grandchildren are disqualified, that the ninth specification requires no further consideration and should be dismissed.

The material and controlling question to be considered under the remaining specifications is whether the learned judge erred in ascertaining the time appointed by the will for the distribution of the trust fund. The conclusion reached by him in a clear and able opinion was, that the words, “ the youngest surviving of these children,” refer to the children of John named in the will and living at the time of its execution, and that the persons entitled to the fund at the time of distribution are such of John’s children or their issue, as then answer the testator’s description of the primary objects of his bounty. This construction gives the fund in equal shares to the five children of John, now living, and harmonizes best with the obvious purpose of the testator in the creation of the trust and the disposition of its principal and accumulations. It was plainly his intention that John’s children or their issue having the requisite qualifications, should have the full benefit of this trust, but it is clear that they cannot if the construction contended for by the appellant prevails. The statutory limit of a trust for accumulation to take effect at the death of the creator of it is twenty-one years, and such a trust for any period beyond this limit is void as to the excess. Act of April 18, 1853, P. L. 503 ; Brown et al. v. Williamson’s Executors, 36 Pa. 338. A trust to accumulate until the youngest surviving of the chib *201dren John may have attains the age of twenty-one years is transgressive. It must according to the contention of the appellant continue while John lives, and it may cover a period of twenty-One years after his death. The presumption is that the testator knew and endeavored to comply with the law applicable to the trust he created, and if his will fairly admits of a construction which sustains the trust and gives the proceeds of it to his intended beneficiaries it should be adopted. It was in'the light of these principles that the learned auditing judge read and construed the will, and the learned orphans’ court in banc approved the adjudication. Is such construction justified by the language of the will and the authorities pertinent to the subject ? It sustains and its results are in harmony with the letter and spirit of the trust. If the words “ until the youngest surviving of these children shall have attained the age of twenty-one years ” refer to the children the testator had previously, in the same paragraph of his will, designated by their „ names, the time for distribution came when Catharine was twenty-one, because she was the youngest of “ these children ” who attained that age, and if the words “ such other children lawful issue which he may have ” mean such other children as John may have at that time, the adjudication is right. We think this construction is fairly warranted by the authorities referred to in the opinion of the learned auditing judge, and that by it effect is given to the manifest intention of the testator. As it terminates the trust and is decisive against the claim of the appellant, we need not discuss the matters which are merely incidental, further than to say that the appellees are not estopped by the petition under which The Real Estate, Title, Insurance and Trust Company was appointed trustee from now asserting their claim to the trust fund.

Decree affirmed and appeal dismissed at the cost of the appellant.